Papazoni v. Shumlin
Filing
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OPINION AND ORDER granting 8 Motion to Dismiss for Failure to State a Claim; denying as moot 10 Motion to Continue Trial. Signed by Judge Geoffrey W. Crawford on 11/17/2015. (esb)
U.S. D
D!STRi
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
DAVID PAPAZONI,
Plaintiff,
v.
PETER SHUMLIN,
Governor of Vermont,
Defendant.
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Case No. 5:15-cv-00056
OPINION AND ORDER RE:
DEFENDANT'S MOTION TO DISMISS AND PLAINTIFF'S MOTION FOR
CONTINUANCE OF TRIAL
(Docs. 8, 10)
Pro se Plaintiff, David Papazoni, brings this action against Peter Shumlin, Governor of
Vermont, in his official capacity. Now pending before the court is Governor Shumlin's Motion
to Dismiss and Mr. Papazoni's Motion for Continuance of Trial. (Docs. 8, 10.) For the reasons
that follow, Governor Shumlin's Motion to Dismiss (Doc. 8) is GRANTED, and Mr. Papazoni's
Motion for Continuance of Trial (Doc. 10) is DENIED as moot.
I.
Background
Mr. Papazoni filed an application to proceed informa pauperis on March 19,2015. On
April 22, 2015, his Complaint was filed, alleging that Governor Shumlin was liable for the
conduct of several state agencies, as well as unnamed state employees, who committed "fraud[],
[aJbuse[J and discriminat[ionJ" relating to Mr. Papazoni's "Social Security [number], [m]edical
records, and [h]ealth." (Doc. 4.) District Judge J. Garvan Murtha granted Mr. Papazoni's
request to proceed in forma pauperis, but dismissed his Complaint (Doc. 4), holding that Mr.
Papazoni's claims were barred by the doctrine of res judicata, or claim preclusion, as he had filed
two previous actions against Governor Shumlin in this court based on the same factual
allegations. (Doc. 3.) The first suit was dismissed on the merits for failure to state a claim, see
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Papazoni v. State of Vt. , No. 5:12-cv-01, ECF No. 22, slip op. at 4-8 (D. Vt. May 9,2013),
appeal dismissed, No. 13-2281, ECF No. 26, slip op. (2d Cir. Aug. 21, 2013), and the second
was dismissed on the basis of res judicata. See Papazoni v. Shumlin, No. 2: 13-cv-258, 2014 WL
1491135, at *1-2 (D. Vt. Apr. 15,2014). The court also noted that Mr. Papazoni's Complaint
failed to allege "any facts to allow the [c]ourt to plausibly infer that Governor Shumlin was
personally involved or otherwise responsible for any ofthe wrongdoing alleged." (Doc. 3 at 5.)
However, the court granted leave to amend because Mr. Papazoni's claims could "conceivably
be brought against a different defendant ...." (Doc. 3 at 5-6.)1
On May 21, 2015, Mr. Papazoni timely filed an Amended Complaint against Governor
Shumlin "and [counsel]," requesting "tort action [to] order Defend[ a]nts [to] comply with this
court." (Doc. 5 at 1-2.) He also seeks mileage reimbursement arising out of a proceeding with
the Vermont Human Services Board. Finally, he requests that the defendants "address the abuse,
[fJraud, discrimination and [iJden[t]ity theft [that] the plaintiff needs to correct." (Id. at 2.)
II.
Analysis
Governor Shumlin moves to dismiss Mr. Papazoni's Amended Complaint for failure to
state a claim for which relief may be granted under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. The Governor argues that Mr. Papazoni's Amended Complaint "does not cure the
deficiencies identified by the [c]ourt in its prior order" and does not assert a claim upon which
relief may be granted. (Doc. 8 at 1.)
A.
Standard of Review
"To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim to reliefthat is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Id. This standard is not "akin to a 'probability requirement,' but it asks for more than a
Mr. Papazoni also claimed wrongful eviction, but the court held that he had not alleged
sufficient facts to state a plausible claim for relief. (Doc. 3 at 4-5.) Mr. Papazoni does not
reassert this claim in his Amended Complaint.
I
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sheer possibility that a defendant has acted unlawfully." Id. Documents filed by a pro se litigant
are "to be liberally construed" and "a pro se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by lawyers." Erickyon v. Pardus, 551
U.S. 89,94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
B. Whether Mr. Papazoni Has Stated A Claim On Which Relief Can Be Granted
As an initial matter, the court notes that the previous order of this court only granted Mr.
Papazoni leave to file claims against a defendant other than Governor Shumlin. (Doc. 3 at 5-6.)
Mr. Papazoni's Amended Complaint continues to seek relief exclusively from the Governor and
could be dismissed on this ground alone? However, given our responsibility to liberally
construe documents filed by pro se litigants, the court will briefly consider the claims alleged.
The claims alleged in the Amended Complaint continue to be barred by res judicata.
"[A] final judgment on the merits of an action precludes the parties ... from relitigating issues
that were or could have been raised in that action." Maharaj v. Bankamerica Corp., 128 F.3d 94,
97 (2d Cir. 1997) (quoting Federated Dep 't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981)).
The district court applies "federal law in determining the preclusive effect of a federal
judgment." Marvel Characters, Inc. v. Simon, 310 F.3d 280,286 (2d Cir. 2002). In the Second
Circuit, res judicata bars subsequent claims where the court determines the matter was previously
decided by: "(1) a final judgment on the merits, (2) by a court of competent jurisdiction, (3) in a
case involving the same parties ... , and (4) involving the same cause of action." In re Adelphia
Recovery Tr., 634 F.3d 678, 694 (2d Cir. 2011) (internal citation omitted).
The Amended Complaint lists the defendants as "Peter Shumlin Governor [of the] State of
Vermont and console." (Doc. 5 at 1.) To the extent that Mr. Papazoni intended to also bring suit
against the Vermont Attorney General's Office by filing his Amended Complaint against
Governor Shumlin "and console," or counsel, he has failed to allege that the Attorney General
himself or any employee of the Attorney General's Office violated federal law or was personally
involved in depriving Mr. Papazoni of any rights. See Carvel v. Cuomo, 357 F. App'x 382, 383
84 (2d Cir. 2009); Dutkiewicz v. Hyjek, 135 F. App'x 482, 483 (2d Cir. 2005). Moreover, while
the body of the Amended Complaint states that Mr. Papazoni has "requested [a]ppeals" with
"H.U.D." and individuals associated with the Vermont State Housing Authority, the Vermont
Human Services Board, and the Attorney General's office (Doc. 5 at 1-2), unlike in previous
cases in which Mr. Papazoni filed suit against multiple defendants, see Papazoni, 2014 WL
1491135, at *1, the only individual who has been named and served in this matter continues to
be Governor Shumlin. (See Doc. 6.)
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As noted by this court's previous order, two preceding cases bar the present action. In
the first case, Mr. Papazoni alleged that Governor Shumlin had participated in "[ a]buses,
[f]rauds, and [d]iscriminations" in the form of an improperly recorded Social Security number
and the denial of access to medications, among other claims. See Papazoni, No. 5:12-cv-Ol,
ECF No. 15 at 1-3. Having already granted Governor Shumlin's Motion to Dismiss on the basis
of Eleventh Amendment immunity and having granted Mr. Papazoni leave to file an amended
complaint on two separate occasions, Chief Judge Christina Reiss considered the possibility that
Mr. Papazoni intended to bring claims against Governor Shumlin in his individual capacity. The
court concluded that Mr. Papazoni failed to allege any facts to support such a claim. The court
also held that Mr. Papazoni failed to allege facts connecting Governor Shumlin to an ongoing
violation of federal law which might merit prospective injunctive relief under the Ex Parte
Young exception to Eleventh Amendment immunity. All claims against Governor Shumlin were
dismissed under Rule 12(b)(6). Thereafter, Mr. Papazoni brought another action against
Governor Shumlin alleging similar claims of "abuse, fraud, and discrimination" which Judge
William K. Sessions, III dismissed with prejudice, on res judicata grounds. See Papazoni, 2014
WL 1491135, at *1-2. Mr. Papazoni did not appeal that determination.
Here, the claims alleged in the Amended Complaint involve the same defendant and
nearly identical causes of action as did the two earlier cases. As these claims have already been
dismissed on their merits for failure to state a claim, see Federated Dep 't Stores, 452 U.S. at 399
n.3 (dismissal for failure to state claim under Rule 12(b)(6) operates as "judgment on the merits"
(quoting Angel v. Bullington, 330 U.S. 183, 190 (1947») and on res judicata grounds, see
Haefner v. City o/Lancaster, Pa., 566 F. Supp. 708, 710-11 (E.D. Pa. 1983) (previous judgment
dismissing case on res judicata grounds has "same preclusive effect as the judgment upon which
[the previous judgment] was predicated"), they are again barred.
The court, however, notes two issues in the Amended Complaint that were not directly
addressed before. First, Mr. Papazoni seeks mileage reimbursement arising out of a proceeding
with the Vermont Human Services Board. (Doc. 5 at 2.) He states that the "[d]efend[a]nt[']s
milEe] age does not cover [Mr. Papazoni' s] needs" and the "defend[ a]nts are aware [that Mr.
Papazoni's] state case worker [is] in Rutland." (ld.) He therefore requests that the
"[ d]efend[ a ]nts cover all mil[ e]age required." (ld.) First, in its current iteration, this allegation
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lacks sufficient facts to state a plausible claim for relief. Moreover, it fails to articulate any
connection between Governor Shumlin and this state proceeding, or any factual allegations
specific to Governor Shumlin to suggest that he was personally involved or othcrwise
responsible for any alleged wrongdoing. See Wright v. Smith, 21 F.3d 496,501 (2d Cir. 1994)
("It is well settled in this Circuit that 'personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of damages under [42 U.S.C.] § 1983."
(quoting Moffitt v. Town ofBroolfzeld, 950 F.2d 880, 885 (2d Cir. 1991»); see also Polk Cty. v.
Dodson, 454 U.S. 312,325 (1981) (respondeat superioris inapplicable to § 1983 claims).
Second, the Amended complaint not only alleges "abuse, [fJraud, [and] discrimination,"
but also "[i]den[t]ity theft." (Doc. 5 at 2.) No direct claims of identity theft were alleged in Mr.
Papazoni's Second Amended Complaint considered by Chicf Judge Reiss,3 see Papazoni, No.
5: 12-ev-01, ECF No. 15, or in his Complaint considered by Judge Sessions. See Papazoni, No.
2:13-cv-258, ECF No.4. However, "identity theft" appears to be an element of Mr. Papazoni's
previously asserted claims against thc Governor. In his Second Amended Complaint before
Chief Judge Reiss, Mr. Papazoni alleged that the defendant's use of an incorrect Social Security
number violated his rights and requested that the defendant remedy this by "prov[ing] his
[i]dentity." See Papazoni, No. 5:12-cv-Ol, ECF No. 15 at 1, 3. Subsequently, in his case before
Judge Sessions, Mr. Papazoni alleged that Governor Shumlin was among a group of defendants
that ''use[d] [his] compr[o]mi[s]ed Social Security number," which amounted in "abuse, fraud,
and discrimination against [Mr. Papazoni]." See Papazoni, 2014 WL 1491135, at *1.
Mr. Papazoni's Motion for Continuance of Trial in this case further makes clear that his
claims of identity theft are associated with the abuse, fraud, and discrimination repeatedly
alleged against Governor Shumlin. (See Doc. 10 at 1 ("the State of Vermont duplicat[ed] the
Plaintiff[']s Social Security [n]umber creating [i]dentity [t[heft, [a]buses, [fJraud[,] and
[d]iscrimination."» Moreover, Mr. Papazoni does not allege any facts to allow the court to
plausibly infer that Governor Shumlin was personally involved or otherwise responsible for any
3 Mr. Papazoni did however assert allegations of identity theft in his original Complaint and First
Amended Complaint before Chief Judge Reiss. See Papazoni, No. 5:12-cv-Ol, ECF No.1, ECF
No.8 at 1-2.
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wrongdoing associated with his claim of identity theft. Accordingly, even absent res judicata,
this allegation lacks sufficient facts to state a plausible claim for relief.
Finally, Mr. Papazoni requests that the court order Governor Shumlin to "comply with
the decision" that Chief Judge Reiss "decided on." (Doc. 5 at 1.) He alleges that Governor
Shumlin has "not complied to fact findings and decision[s] of this [c]ourt." (Id.) However, all of
Mr. Papazoni's prior actions against Governor Shumlin have been dismissed and there are no
existing judgments or orders for this court to enforce.
Generally, a pro se litigant is afforded an opportunity to amend his or her pleading prior
to dismissal ''unless the court can rule out any possibility, however unlikely it might be, that an
amended complaint would succeed in stating a claim." Abbas v. Dixon, 480 F.3d 636,639 (2d
Cir. 2007) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)). Two
previous decisions of this court have concluded that granting leave to amend with respect to Mr.
Papazoni's claims against Governor Shumlin would be futile. See Papazoni, No. 5:12-cv-01,
ECF No. 22, slip op. at 8-9; Papazoni, 2014 WL 1491135, at *4. In the present action, Mr.
Papazoni was granted such leave only to bring claims against a different defendant, but the
Amended Complaint still asserts claims exclusively against Governor Shumlin. In light of the
court's previous efforts to alert Mr. Papazoni to the relevant legal issues and standards in this
case, there is no reason to believe that a second amended pleading would cure the identified
deficiencies. Further leave to amend would be futile and is therefore unwarranted. See Ruffolo
v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (not abuse of discretion to deny leave
to amend "[w]here it appears that granting leave to amend is unlikely to be productive").
III.
Conclusion
For the reasons stated above, Governor Shumlin's Motion to Dismiss is GRANTED and
Mr. Papazoni's Motion for Continuance of Trial is DENIED as moot.
Dated at Rutland, in the District of Vermont, this 1i
h
day ofNovember, 2015.
~
Geoffrey W. Crawford, Judge
United States District Court
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